H1 transfer and GC filing issues

[Queens]

Hi ,

I know that the questions I have has been asked numerous time in this forum.

But every case is different , so it will give me peace of mind if anyone can answer my questions .

I am currently working for company A. My H1 is valid till 2013 and it is my second extension.In other words , I have 1-140 approved(more than 180 days) and got my H1 based on this .

My GC is under EB3 category and since company A is refusing to port , I am considering to transfer my H1 to Company B.

1. Company A is refusing to give me my I-140 details . But Company B says they will go ahead and file for a H1 transfer(without my I-140 details).

Will my new H1 get approved ? Will I get it again for 3 years ?

2. For some reasons , if my new H1 gets rejected ,Will it impact my current H1 ?

3. Company B is going to apply for a new GC under EB2 category . Is it possible to use the PD of my EB3 without the copy of I-140 ?

4. I have to join Company B as soon as my new H1 gets approved .What will happen if my EB2 application gets rejected ?

what will happen to my status ?

5. If I do H1 transfer , do I have to travel back to India to make it valid ?

6. Apart from all this , is there any other issues which I should consider ?

Please advise.

[Live4GC]

Please consult an attorney. Pay $150 per hour or whatever. Forums is only good for non critical issues.

[Attorney_20]

1. If you move to Company B, you must remain eligible for an H1B extension beyond the normal 6 year limit for their petition to get approved. If Company A withdraws the I-140 before Company B's H1B extension is approved, you will not have a basis to extend beyond the 6 year limit. But if Company B's petition is approved and then Company A withdraws the I-140, you would still get the remaining approved time in H1B status but you would have to find another way to be eligible for a 6+ year extension before the expiration of the new validity period.

Also, you may want to file a Freedom of Information Act (FOIA) with USCIS to get documentation of the I-140 approval.

2. Your current H1B would remain valid only if Company A does not withdraw the petition, which is a possibility if you leave the company.

3. You should be able to retain the earlier Priority Date if Company B files a new case for you as long as Company A's I-140 petition is not revoked for fraud or another substantive reason. Currently, USCIS guidance indicates that a beneficiary of an approved I-140 should still be able to retain an earlier PD even if the petitioner withdraws the petition.

4. Your GC case is for a future position and does not affect your current nonimmigrant status. You need to maintain nonimmigrant status until you are able to file an I-485 Adjustment of Status application in order to be eligible for the green card.

5. If you are currently maintaining H1B status, you may be able to get an Extension of Status approved by USCIS. That means USCIS will issue an I-94 card (i.e., the status document) if they approve the H1B petition. In that case, you would not need to travel abroad to obtain a new visa.

6. There are several other potential issues to consider. You should discuss your case with an experienced immigration attorney who can analyze your case more carefully.